Illegal Pre-Employment Screening Practices

Requesting Photos as a Pre-Employment Screening Practice? Don’t Do It.

There are a number of local, state and federal laws which prohibit discrimination in employment on a variety of bases. When an employer takes certain types of actions: hiring, firing or  promoting employees, it must take care to do so in such a way that none of the applicable anti-employment laws are violated. There are certain employment practices that are considered suspect and are best avoided. Requiring that applicants submit photographs with their applications for employment is one such suspect practice. It’s best for an employer to avoid this practice, let’s examine the reasons why.

When Does a Virginia Employer Become Liable for Employment Discrimination and on What Basis?

Under the Virginia Code, and Prince William County’s Human Rights Ordinance, an employer with five (5) or more employees can be liable for discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, and/or disability.

Under Federal Law, employers with fifteen (15) or more employers are liable under Title VII of the Civil Rights Act of 1964, (which covers, race, color, national origin, gender and religion.)

Also, employers with twenty (20) or more employees, are liable under the Age Discrimination in Employment Act of the Civil Rights Act of 1964, (which covers any individual over age 40.)

And finally, employers with fifteen (15) or more employees, are liable under the Americans with Disabilities, (which covers any individual with a qualified disability.)

Question: Is Requiring Photos in Conjunction with Employment Applications Discrimination?

Answer: While not necessarily discriminatory on it’s face,  in certain circumstances, requiring a photo with an application can be a discriminatory pre-employment screening practices, probative of discrimination.

Discriminatory  Pre- Employment Screening  Practices

Requiring photographs with applications for employment  is a problematic  pre-screening practice because it allows an employer to identify an individual’s race, color, gender, and possibly age and/ or disability.  The burden will rest with the employer to demonstrate that this pre-screening activity is not discriminatory.  It may be difficult to an employer to meet that burden. This will be especially difficult to prove if the employer has consistently employed individuals of a certain, race, gender, age, and especially if the employer has specifically requested a certain, race, gender or age. Requesting a certain “type” is also problematic, as these statements are often seen as code words for a certain race, gender or age.

Furthermore, the kind of documentation that can occur in conjunction with this sort of pre-screening, can be (and often does provide) clear evidence of systematic discrimination and the damages that can be assessed for such practices can be substantial.

With discrimination, each case rest upon the facts of the particular incident in question, however, in order to avoid the hassle of a lawsuit and substantial legal liabilities,  an employer should avoid these dubious pre-screening practices.  Agencies that are involved with selecting temporary employees, or placing employees can also be liable for engaging in these sorts of pre-screening practices; and can pass the liability on to their client/employer.

Bottomline: An employer needs to avoid these types of pre-screening employment practices. They are red-flag activities which, more often than not, lead to allegations of employment discrimination and/or, employment discrimination investigations and lawsuits.